COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Richmond, Virginia 

VALETON PRATT 

v. Record No. 0793-94-2 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995 

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY 

Charles L. McCormick, III, Judge 

 Buddy A. Ward, Public Defender (Robert H. 

Morrison, Assistant Public Defender; Office 

of the Public Defender, on brief), for 

appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Robert B. Condon, Assistant Attorney General, 

on brief), for appellee. 

 Appellant appeals his conviction for possession of a firearm 

after having been previously convicted of a felony on the ground 

the evidence is not sufficient to support the conviction. For 

the reasons stated below, the conviction is affirmed. 

 On November 14, 1993, officers of the South Hill Police 

Department received a dispatch to investigate a report that a man 

was holding "a gun or a knife on a female in a white vehicle" 

located in the parking lot of a department store. 

 When they arrived at the lot, the officers saw only one 

occupied, white car parked there. The passenger door was open. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Pratt was holding a baby and seated in the passenger's seat while 

his wife, the owner of the car, occupied the driver's seat. When 

the officers approached the vehicle, Pratt closed the passenger 

door. The officers approached the car and asked Pratt "to put 

the baby down." 

 As he exited the car, Pratt held the baby and the officers 

again requested that he put the baby down and "put his hands up." 

 Officer Harris testified, "As [Pratt exited the car], we could 

see there was no weapon in his hands and [Pratt] was advised to 

put his hands on the trunk of the car. He refused, cursing and 

telling us to shoot him." 

 The officers handcuffed Pratt, but he "kept trying to get to 

the female stating that he just wanted to talk to his wife." 

Appellant refused to get into the police car and had to be 

restrained before he was transported to police headquarters. 

 Sergeant Sims testified that, "as a result of a witness' 

statement at the scene," he went into the vehicle and found a .25 

caliber gun on "the floorboard right where the passenger's seat 

would have been where [Pratt] was sitting in the vehicle." The 

gun "was under the front edge of the seat directly underneath 

where the passenger would be sitting." 

 In reviewing the sufficiency of the evidence to support a 

conviction, this Court's analysis is guided by well-established 

principles. 

 

 On appeal, we review the evidence in the 

light most favorable to the Commonwealth, 
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granting to it all reasonable inferences 

fairly deducible therefrom. The judgment of 

a trial court sitting without a jury is 

entitled to the same weight as a jury verdict 

and will not be disturbed on appeal unless it 

is plainly wrong or without evidence to 

support it. 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987) (citations ommitted). 

 We, as an appellate court, must "discard the 

evidence of the accused in conflict with that 

of the Commonwealth, and regard as true all 

the credible evidence favorable to the 

Commonwealth and all fair inferences to be 

drawn therefrom." "Additionally the 

credibility of witnesses and the weight to be 

given their testimony are questions 

exclusively within the province" of the fact 

finder. 

May v. Commonwealth, 3 Va. App. 348, 355-56, 349 S.E.2d 428, 432 

(1986) (citations ommitted). 

 The same legal principles involved in the constructive 

possession of controlled substances are applicable here. Blake 

v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220-21 

(1993). 

 Constructive possession may be established by 

"evidence of acts, statements, or conduct of 

the accused or other facts or circumstances 

which tend to show that the defendant was 

aware of both the presence and the character 

of the substance and that it was subject to 

his dominion and control." 

Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440, 

448 (1987) (citations omitted). 

 In determining whether Pratt constructively possessed 

a firearm, his proximity to the firearm and his occupancy and 
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ownership of the vehicle may also be considered. 

 Ownership or occupancy of a vehicle or of 

premises . . . may be considered together 

with other evidence tending to prove that the 

owner or occupant exercised dominion and 

control over items in the vehicle or on the 

premises in order to prove that the owner or 

occupant constructively possessed the [item]. 

 Furthermore, proof that a person is in close 

proximity to the [item] is a relevant fact 

that, depending on the circumstances, may 

tend to show that, as an owner or occupant of 

property or of a vehicle, the person 

necessarily knows of the presence, nature and 

character of [the item] that is found there. 

 

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369 

(1994) (en banc) (citations omitted). 

 The evidence in this case supports the trial court's finding 

that Pratt was aware of the presence and character of the firearm 

in the vehicle and that he exercised sufficient dominion and 

control over it to constitute constructive possession. The car 

in which the gun was found belonged to his wife. He occupied the 

car with her, sitting in close proximity to the gun, in an area 

which placed the gun within his immediate control. Pratt's acts, 

statements and conduct, when the police arrived on the scene, 

together with his wife's demeanor, clearly related to the 

reported abduction incident. From the evidence, and all the 

reasonable inferences to which the Commonwealth's evidence is 

entitled, it cannot be said that the trial court's conclusion 

that Pratt was aware of the presence and nature of the firearm 

and that he had exercised dominion and control over it was, as a 

matter of law, plainly wrong. See Adkins v. Commonwealth, 217 
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Va. 437, 438-39, 229 S.E.2d 869, 870 (1976). Appellant's 

conviction is therefore affirmed. 

Affirmed.

Benton, J., dissenting. 

 "The Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every 

fact necessary to constitute the crime with which he is charged." 

In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court of 

Virginia has consistently held that convictions may not be based 

upon speculation, surmise, or conjecture. 

 It is, of course, a truism of the criminal 

law that evidence is not sufficient to 

support a conviction if it engenders only a 

suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture. The 

evidence must be such that it excludes every 

reasonable hypothesis of innocence. 

Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 

(1951). See also Hyde v. Commonwealth, 217 Va. 950, 955, 234 

S.E.2d 74, 78 (1977). 

 These principles leave no room to doubt that in a case such 

as this prosecution, where the Commonwealth relies upon 

circumstantial evidence to prove guilt, the evidence must not 

merely "raise a strong suspicion of guilt, . . . it [must be] 

 . . . wholly inconsistent with the innocence of [the] 

defendant." Foster v. Commonwealth, 209 Va. 326, 330, 163 S.E.2d 

601, 604 (1968). In other words, to prove beyond a reasonable 
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doubt that Pratt possessed the gun, the Commonwealth was required 

to exclude every reasonable hypothesis that Pratt was unaware of 

the presence of the gun. 

 The Commonwealth has failed to "point to evidence of acts, 

statements, or conduct of [Pratt] or other facts or circumstances 

which tend to show that [Pratt] was aware of . . . the presence 

. . . of the [gun]." Powers v. Commonwealth, 227 Va. 474, 476, 

316 S.E.2d 739, 740 (1984). No evidence proved that Pratt owned 

the gun, possessed the gun, or knew that the gun was under the 

seat of the vehicle. Pratt's wife owned the vehicle. Proof that 

the gun was under the seat in his wife's vehicle merely 

established proximity, which "is not enough to establish 

possession." Id. 

 As the Supreme Court stated in Willson v. Commonwealth, 160 

Va. 913, 917, 168 S.E. 344, 345 (1933), and as pertinent to this 

case, "[i]f all of the testimony introduced by the Commonwealth 

is believed and all the reasonable inferences deduced therefrom 

are properly considered and allowed against the accused and if 

all of the testimony introduced in his behalf is discarded, the 

fact still remains that his guilt, as a matter of law, has not 

been proven beyond a reasonable doubt." For these reasons, I 

would reverse the conviction.